Filed 8/23/18 Albrecht v. Regents of the University of California CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge, and Michael Brenner, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.Const.) Affirmed in part, reversed in part.

Bohm Law Group, Lawrence A. Bohm, Zane E. Hilton and Bradley J. Mancuso for Plaintiff and Appellant.

Paul, Plevin, Sullivan & Connaughton, Sandra L. McDonough and Joanne Alnajjar Buser for Defendants and Respondents.

Plaintiff Peter Albrecht claims that while employed by the University of California Irvine Medical Center (UCI) he was harassed and, ultimately terminated, due to his age and disability. The defendant employer, Regents of the University of California, claims he was fired due to excessive unexcused absences. The court summarily adjudicated various retaliation and discrimination claims, but allowed Albrecht’s harassment claims to go to trial. The jury returned a defense verdict, and Albrecht appealed from the ensuing judgment.

Albrecht contends the court erred in granting summary adjudication because there were disputed material facts as to all his retaliation and discrimination claims. We conclude he is correct as to his retaliation claim under the California Moore-Brown-Roberti Family Rights Act (CRFA) (Gov. Code, §§ 12945.1, 12945.2) and the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C., § 2601 et seq.), and his claim for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, §12900 et seq.), but not as to his other causes of action.

Albrecht also contends the court abused its discretion at the trial stage by excluding, in limine, evidence that he was fired. We conclude otherwise. Personnel decisions such as firings are categorically distinct from acts of harassment. They can be relevant to a harassment claim if they contributed to a harassing message or hostile work environment, but there was no evidence Albrecht’s firing fit into that sort of pattern here.

FACTS

For the appeal from the summary adjudication rulings, we must “view the evidence in the light most favorable to the plaintiffs as the parties opposing summary judgment, and we liberally construe the plaintiffs’ evidence and strictly scrutinize the defendant’s evidence, resolving ambiguities in the plaintiffs’ favor.” (Morales-Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 451.) So construed, the evidence supports the following facts.

Albrecht is a psychiatric nurse. UCI hired him in 2000. In 2007, Albrecht was injured attempting to restrain a patient with methamphetamine-induced psychosis. His injuries included a detached retina, a torn anterior cruciate ligament, and lower back damage. As a result of his injuries, Albrecht missed approximately three years of work, which UCI approved as extended medical leave. He returned to work in October 2010.

In 2011, Albrecht began to accrue what UCI deemed to be unexcused absences. On January 5, 2012, UCI sent Albrecht a letter warning him of substandard attendance due to absences on September 21-22, October 15-16, and November 1, 2011. These were deemed to be a third occurrence under UCI attendance policy, as he had received similar letters in 2005 and 2008. The letter advised Albrecht, “If you believe any of the absences above qualify as exclusions under the Family & Medical Leave Act (FMLA), please notify me immediately.”

In April 2012, Albrecht transferred to the Adolescent Partial Hospitalization Program (the Program). The director, Paula Martin, selected Albrecht from a pool of five applicants. Albrecht was 63 years old at the time.

On April 4, 2012, Albrecht received another letter warning him of substandard attendance, for absences on March 19 and March 31, 2012. The letter deemed this a fourth occurrence, and once again included the same advisement regarding FMLA leave.

Albrecht quickly formed the opinion that the Program was understaffed and poorly managed. Approximately two and a half weeks after his arrival, the supervisor (someone named Vasquez) went out on maternity leave, which left Albrecht in charge as the patient care coordinator of the unit. He felt unprepared for that task, and felt alienated and resented by the other staff.

Albrecht was required to attend staff meetings twice per month, led by Martin. In those meetings, he endured harassing, degrading, and discriminatory comments based on his age and disability. For example, the staff would suggest he was absentminded, mentally slow, forgetful, and out of it. Martin did not attempt to put a stop to those comments. When Albrecht complained to Martin about a particular coworker named Jessica Connor, Martin threatened, “if you cannot get along, [I] will close down the unit and eliminate all your positions.”

In one incident, an employee accused Albrecht of making an insulin medication error. Albrecht believed he was innocent and went to speak with Martin about the incident, but Martin directed the conversation to his inability to perform his duties, an accusation that Albrecht believed was based on derogatory comments from the staff. He tried again several days later to address the issue with Martin, but was similarly rebuffed.

Sometime around June 2012, Martin asked two employees to monitor Albrecht for the purpose of building a case to fire him. One of those employees was Connor, who testified Martin asked them to keep a written log of complaints against Albrecht. The purpose was to have documented reasons for firing him.

In July 2012, Albrecht received another letter concerning substandard attendance, this time for an absence on July 2, 2012. The letter deemed this a fifth occurrence and contained a similar advisement regarding FMLA leave.

Also in July 2012, an employee sent Martin an e-mail accusing Albrecht of reporting the wrong census. As a result, Martin sent Albrecht an e-mail accusing him of “errant reporting.” Albrecht denied the allegation.

In August 2012, Albrecht contacted UCI’s human resources (HR) department. After meeting with HR representative Dale Cole and discussing his complaints, Cole stated Martin was exactly the sort of person they wanted for the job. Albrecht left the meeting discouraged.

Also in August, Martin received evaluations from her staff that were critical of her. Martin held a staff meeting where she expressed her dismay and stated, “I am the person who does your yearly evaluations,” which the staff took as a threat against them.

That same month Albrecht applied for intermittent FMLA medical leave, which was granted. This entitled Albrecht to take leave twice per month, for up to two days per leave.

In September 2012, Connor entered Albrecht’s office without permission and rummaged through his personal belongings. She photographed his prescription medications, as well as documents relating to Albrecht’s divorce. She reported to Martin that Albrecht had left “pornographic abuse photos” on his desk for everyone to see.

About a week later, Martin held a private meeting with Albrecht in his office. She stated she was concerned about his FMLA history and asked him when he planned to retire. Albrecht responded that he had no plans of retiring any time soon, and that he had not used his full allotment of intermittent FMLA leave for the year.

In October 2012, Martin completed Albrecht’s annual evaluation. She scored him on several different criterion, with an average score of “exceeds expectations,” and left comments that were generally positive.

On February 4, 2013, Martin sent Albrecht an e-mail accusing him of taking his FMLA leave around holidays, stating she could “determine no reason why episodes or flare-ups will most likely occur around holiday time off.” She stated that any FMLA leave taken around holidays from then on would need to be supported by a doctor’s note “to indicate that flare-ups are more likely to occur on or around the holiday and we will attempt to accommodate that.” In the e-mail she provided the following list of his FMLA absences: August 22 and 23, 2012; September 4, 2012; November 1, 2012; December 10, 2012; January 3 and 4, 2013.

On March 25, 2013, Albrecht was called into a meeting with Martin and the assistant director of neuropsychiatry. He was presented with a notice of dismissal due to absenteeism. The notice identified additional absences on February 15, and March 12 through 15, 2013. As the meeting was ending, Martin commented that Albrecht really “needed to retire,” making reference to how “disabled” he looked. Albrecht’s dismissal was effective April 4, 2013.

Following this meeting, Albrecht requested a Skelly hearing.[1] The same HR representative he had previously met with, Dale Cole, was present as the “impartial and non-involved reviewer.” During this hearing, discussions were had regarding the merits of Albrecht’s absenteeism. Cole stated that UCI “did not know” that Albrecht was permanently and stably disabled. Nonetheless, Cole found no merit to Albrecht’s explanations for his absences and upheld the termination.

On April 4, 2013, Albrecht wrote a letter to Cathy Allen, University of California, Office of Equal Opportunity and Diversity, in which he outlined “‘concerns for the treatment and safety of our patients in Psychiatry.’” In this letter, he outlined how: “(1) Martin’s ‘administrative attitude is compromising patient care and safety on a daily basis,’ (2) ‘[s]he has created a hostile work environment where staff is paranoid and fearful of retaliation,’ (3) she is ‘cutting major corners in our programs and systematic harassment of staff,’ ( 4) she ‘is putting the safety of patients in jeopardy,’ and (5) ‘her attitude has been that the care and treatment of patients was her least concern.’ This letter also discussed how ‘[o]n June 6, 2012 we had a staff meeting which clearly demonstrated safety issues were being ignored completely . . . .’ Martin appeared to have no interest in investigating the alleged medication error or in taking corrective action to avoid potential future medication errors.” He also briefly discussed “harassment and discrimination based on his age and disability.”

On April 8, 2013, HR Representative Cole wrote an e-mail to Albrecht’s union representative clarifying UCI’s position that the termination was proper. However, “given Mr. Albrecht’s tenure with the Medical Center,” he offered Albrecht a different nursing position in lieu of firing him. Albrecht ultimately rejected that position because he did not want to work with potentially violent patients, and none of the available positions could guarantee that condition.

On April 15, 2013, Albrecht “filed a complaint with the University of California, Irvine, Office of Equal Opportunity and Diversity. [He] signed this document attesting that, I ‘hereby certify that the information I have provided in this complaint form are true to the best of my knowledge.’ [He] understood this attestation to be the same as signing under penalty of perjury. In this complaint, [he] outlined a long history of patient health and safety complaints, harassment, discrimination, and retaliation against him and other employees.”

On April 25, 2013, Albrecht wrote a letter to Karen Grimley, UCI Medical Center’s Director of Nursing. In this letter, he again outlined concerns regarding “the care and safety of our patients.” He also reiterated complaints of harassment and discrimination based on my age and disability, as well as invasion of privacy by Connor.”

In July 2013, Albrecht received a letter from Raid Faraj, senior investigator/diversity educator, University of California Office of Equal Opportunity and Diversity. In this letter, Faraj stated, “Although no violation of the University of California Nondiscrimination and Affirmative Action Policy Regarding Academic and Staff Employment was found, the investigation did reveal that Ms. Connor made inappropriate and unprofessional remarks about you.”

Albrecht filed his first amended complaint in March 2014, alleging 12 causes of action: (1) Whistleblower retaliation regarding healthcare facilities (Health & Saf. Code, §1278.5); (2) Whistleblower retaliation for state employees (Gov. Code, § 8547 et seq.; (3) Whistleblower retaliation under the Labor Code (Lab. Code, §§ 98.6, 1102.5); (4) Age and disability discrimination (Gov. Code, § 12940, subd. (a)); (5) Harassment (Gov. Code, § 12940, subd. (j)); (6) Retaliation (Gov. Code, § 12940, subd. (h); (7) Failure to accommodate (Gov. Code, § 12940, subd. (m)); (8) Failure to engage in the interactive process (Gov. Code, § 12940, subd. (n); (9) Retaliation in violation of CFRA and FMLA (Gov. Code, § 12945.2; 29 U.S.C. § 2600 et seq.) (10) Failure to prevent harassment, discrimination and retaliation (Gov. Code, § 12940, subd. (k)); (11) Intrusion into Private Affairs; and (12) Penalties under Private Attorneys General Act of 2004 (Lab. Code, §§ 2698 and 2699 (PAGA)). The named defendants were the Regents of the University of California, Paula Martin, and Jessica Connor. All three are defendant and respondents on appeal.

The court sustained a demurrer to the cause of action for penalties under PAGA (12th cause of action), and struck the allegations concerning Labor Code section 98.6 from the third cause of action. That ruling is not at issue on appeal.

Defendants jointly moved for summary judgment, or, in the alternative, summary adjudication. The court denied summary judgment, but granted summary adjudication as to the first through third (whistleblower retaliation claims), fourth (age and disability discrimination), sixth (retaliation under FEHA), seventh (failure to accommodate under FEHA), ninth (retaliation under CFRA and FMLA), and eleventh causes of action (invasion of privacy).

As to the retaliation claims, the court held none of Albrecht’s complaints raised the sort of concern upon which a retaliation claim could be based. Moreover, his complaints largely post-dated the notice of intent to fire him, and thus there was no causal connection between those complaints and his firing. Additionally, defendants established a legitimate, non-retaliatory reason for firing plaintiff: excessive absenteeism.

As to the fourth cause of action for age and disability discrimination, the court held that any stray remarks about Albrecht’s age were too remote in time from the firing to warrant an inference of discrimination. Especially since Martin hired Albrecht knowing of his age and disability, promoted him, and then replaced Albrecht with someone in the same age group.

As to the seventh cause of action for failure to accommodate, the court noted that defendants granted all his requested accommodations regarding absenteeism. There was evidence that defendant had requested a shuttle to help him arrive at work on time, which UCI had apparently not granted. But since he was not fired for being late to work, Albrecht could not establish a claim for damages.

The court denied the motion as to two harassment causes of action (fifth and tenth causes of action), holding there was “barely” a triable issue about whether the conduct Albrecht complained of was severe or pervasive. And the court held there was a triable issue of fact as to the eighth cause of action for failure to engage in the interactive process, based on evidence that defendants were not aware of Albrecht’s disability.

The remaining claims went to trial, i.e., the fifth cause of action for harassment, the eighth cause of action for failure to engage in the interactive process, and the tenth cause of action for failure to prevent harassment. Prior to trial, the court granted a motion in limine prohibiting Albrecht from introducing evidence of his termination. After the close of plaintiff’s case, the court granted a directed verdict as to the eighth cause of action for failure to engage in the interactive process, which is not at issue on appeal. The jury then returned a unanimous defense verdict on the remaining harassment claims. Albrecht appealed from the judgment.

DISCUSSION

Albrecht’s appeal boils down to two issues: Did the court properly grant summary adjudication as to the retaliation and discrimination claims? And, did the court err by ruling in limine that Albrecht could not introduce evidence of his termination at trial?

Retaliation And Discrimination Claims

In an appeal from a summary adjudication, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties.” (Ibid.)

We begin with Albrecht’s retaliation claims, namely, retaliation under Health and Safety Code section 1278.5 (first cause of action), retaliation under Government Code section 8547 et seq. (second cause of action), retaliation under Labor Code section 1102.5 (third cause of action), retaliation under Government Code section 12940, subdivision (h) (sixth cause of action), and retaliation under CFRA and FMLA (ninth cause of action). Albrecht did not present separate argument on the second cause of action for retaliation under Government Code section 8547 et seq. Accordingly, we deem any issue on that cause of action to have been waived. (Cal. Rules of Court, rule 8.204(a)(1)(B) [Each brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority]; Gordon v. Law Offices of Aguirre & Meyer (1999) 70 Cal.App.4th 972, 980, fn. 10.)

Retaliation claims, like discrimination claims, are generally analyzed under the burden-shifting framework of the McDonnell Douglas test. (See McDonnell Douglas Corp. v. Green (1993) 411 U.S. 792; Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 356 [“In reviewing the summary adjudication of the retaliation claim, we apply the burden-shifting test from McDonnell Douglas”].) The “McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz v. Bechtel National Inc.(2000) 24 Cal.4th 317, 354 (Guz).)

“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. [Citations.] While the plaintiff’s prima facie burden is ‘not onerous’ [citation], he must at least show ‘“actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were” based on a [prohibited] discriminatory criterion . . . .’” (Guz, supra, 24 Cal.4th at pp. 354-355.) If the plaintiff satisfies this burden, a presumption of discrimination (or, in this case, retaliation) arises. (Ibid.) Then, the burden shifts to the employer to supply legitimate reason for the firing. (Id. at pp. 355-356.) “If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Id. at p. 356.)

“The McDonnell Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Ibid.)

We have little trouble concluding UCI proffered a legitimate reason for Albrecht’s firing: his unexcused absences. Although Albrecht contends, in some general sense, that his unexcused absences should have been counted as FMLA leave, he makes no effort to argue that claim in any detail. Accordingly, the unexcused absences are a facially valid reason to fire Albrecht. The question, then, is whether Albrecht presented sufficient evidence that the absences were an illegitimate pretext for firing him. Albrecht presented one strong piece of evidence that the stated reason for his firing was pretextual: deposition testimony by Connor that Martin asked her and two other employees to keep a written record of complaints against Albrecht. From this, a jury could infer that the real motivating factor for firing Albrecht was something other than his absences.

That, in and of itself, however, is not enough to sustain a ruling against UCI. Just because Martin had motives other than absences does not mean those motives were illegitimate. Martin may have simply lost confidence in Albrecht, or determined he created too much friction with his coworkers. Thus, we now address each of Albrecht’s retaliation and discrimination claims to determine whether he presented substantial evidence of an illegitimate motive.

CFRA/FMLA Retaliation (9th Cause of Action)

“[T]he elements of a cause of action for retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised [his] right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of [his] exercise of [his] right to CFRA leave.” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.) The standard of causation is “substantial motivating factor.” “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

Albrecht’s strongest evidence of retaliation is the e-mail Martin wrote him in February 2013, about a month and a half before his termination, accusing him of using FMLA leave around holidays. That e-mail, dripping with passive aggression, states, “I am bringing this to your attention because I can determine no reason why episodes or flare-ups will most likely occur around holiday time off in the future. If you believe this is not the case, please ask your physician to update the information provided to indicate that flare-ups are more likely to occur on or around the holiday and we will attempt to accommodate that.” The list Martin provided shows that some days of leave were taken near holidays, but others were not.

To this evidence, Albrecht adds the following. In September 2012, Martin met with Albrecht and, according to Albrecht, suggested his FMLA absences were causing disruption to the Program and that he should consider retirement. About a week before that, Connor, who allegedly was conspiring with Martin to get him fired, had rummaged through his private belongings, taking photos of his medications and private documents. And in March 2013, when Martin fired Albrecht, she commented on how “disabled” he looked, and suggested he needed to retire anyway. From this collection of evidence, a jury could infer Martin was substantially motivated by his FMLA leave to fire him.

UCI responded to the February 2013 e-mail by noting that the contract with Albrecht’s union allowed UCI to obtain recertification of the leave “if the circumstances of the leave change.” It is not clear to us, however, that there was any change in circumstances. More to the point, the e-mail demonstrates that Martin was frustrated with Albrecht’s leave. Even if the particular inquiry in the e-mail was proper, it suggests the possibility of an improper motive for the subsequent firing.

UCI also points out that it offered Albrecht another position, which he rejected, and argues this, as a matter of fact, absolves it of any liability for retaliation. We agree that this evidence cuts against Albrecht’s retaliation claim, but it is for a jury to weigh the value of that evidence against the evidence of retaliation.

Ultimately, construing the evidence in favor of Albrecht, as we must, we conclude the jury could infer a retaliatory animus. We recognize that UCI has an arguably strong factual defense to this claim. But the nature of the inquiry—divining Martin’s motive—makes summary adjudication difficult to obtain because it relies on inferences from circumstantial evidence, all of which must be drawn in Albrecht’s favor in this procedural posture. UCI’s factual defense simply creates disputed issues of fact. Accordingly, summary adjudication on the ninth cause of action for retaliation under the CFRA and FMLA was improper.

FEHA Retaliation (6th Cause of Action)

The elements of FEHA retaliation are essentially the same: Albrecht must show he was fired for engaging in a “‘protected activity.’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Government Code section 12940, subdivision (h), makes it unlawful for an employer to fire an employee “because the person has opposed any practices forbidden under this part . . . .”

Albrecht contends UCI retaliated against him for reporting harassment. FEHA does prohibit certain forms of harassment. (Gov. Code, § 12940, subd. (j).) The principal evidence Albrecht points to is an e-mail he sent to Martin on May 17, 2012, complaining of Connor harassing him. That e-mail, however, is not part of our record. The only evidence we have of it is his own declaration where he describes the e-mail as accusing Connor of “verbally attacking me and accusing me of blaming mistakes ‘on someone else.’” But FEHA does not prohibit all verbal attacks. It prohibits harassment based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” (Gov. Code, § 12940, subd. (j).) There is no indication the e-mail complained of harassment based on one of these protected categories. Moreover, this e-mail was sent almost a year before he was fired, too remote in time to support an inference that it was a substantial motivating factor in Albrecht’s firing. Accordingly, summary adjudication was proper on the sixth cause of action for retaliation under FEHA.

Retaliation Under Health and Safety Code section 1278.5 (1st Cause of Action)

Health and Safety Code section 1278.5 prohibits retaliation by a health care facility against a health care worker who complains about “suspected unsafe patient care and conditions.” (Id. subd. (a), (b)(1)(A).) Subdivision (d)(1) provides a rebuttable presumption that an adverse employment action was discriminatory or retaliatory if it occurred within 120 days of the employee’s complaint.

The strongest evidence Albrecht points to is a conversation he had with HR representative Dale Cole in August 2012, well beyond the 120-day presumption. Of that conversation, he attested, “I informed Cole that Martin was behaving in a harassing, discriminatory, and retaliatory manner towards me, as well as condoning and encouraging the other staff to behave the same. I also made a point of informing Cole that Martin refused to investigate [a] patient medication error, thereby jeopardizing patient health and safety.” Cole took contemporaneous notes of the conversation, which are part of our record. His notes confirm that Albrecht complained the social workers were misdirecting him, refusing to aid him, and, in one case, gave him incorrect information. According to the notes, Martin had told Albrecht the staff lost confidence in him and he was “running out of time.” There is nothing in the notes about a patient medication error.

Albrecht testified elsewhere about the patient medication error. In June 2012, at a staff meeting, Connor accused him of a medication error regarding insulin for a patient. Albrecht denied the error and pointed out that the patient in question was not his. On two subsequent occasions, he attempted to follow up with Martin, but Martin rebuffed him and “directed the conversation to [his] inability to perform [his] duties . . . .”

Even resolving all conflicts and inferences in Albrecht’s favor, this did not amount to a complaint about patient conditions. On the contrary, Albrecht was defending himself against an accusation that he created an unsafe patient condition. He felt he was getting the short end of the stick, and he wanted to set the record straight. Which is perfectly understandable. But which is not the sort of complaint about patient safety the statute envisions.

Next, Albrecht points to a meeting he had with the head of the social workers in the psychiatry department, Angela Pruitt. Apparently, he sent an e-mail to her in August 2012, but, once again, we do not have that e-mail in the record. When asked about the nature of that e-mail in a deposition, he stated, “So Jessica [Connor] stated she was overwhelmed that day and that we may need additional help. So I sort of put her on standby at—I could—I could probably help, but we might need somebody.” Needing a single additional staff member on a single day is not the sort of patient safety issue contemplated by Health and Safety Code section 1278.5. While we recognize that dangerously low staffing levels could rise to a patient safety issue, we decline to turn every mundane staffing issue into a potential retaliation lawsuit.

Neither of the two examples Albrecht cited were sufficient to create a disputed material fact, and thus summary adjudication was proper on the first cause of action for retaliation under Health and Safety Code section 1278.5.

Retaliation Under Labor Code Section 1102.5 (3rd Cause of Action)

Labor Code section 1102.5, subdivision (b), provides, in relevant part, “An employer . . . shall not retaliate against an employee for disclosing information . . . to a person with authority over the employee . . . , if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” Rather than argue any specific evidence supporting this claim, Albrecht simply states, “As discussed supra, Albrecht made repeated oral and written complaints of violations of the FEHA, and patent safety complaints which he believed to be violations of the law and university policy.” Our analysis, however, has not disclosed any substantial evidence of retaliation against complaints Albrecht made. We concluded above that there is sufficient evidence of retaliation against Albrecht’s use of FMLA leave, but that is not a complaint, and thus does not satisfy Labor Code section 1102.5, subdivision (b). Accordingly, summary adjudication was proper as to the cause of action for retaliation under Labor Code section 1102.5.

Age and Disability Discrimination (4th Cause of Action)

“In the context of disability discrimination, the plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.) We have already determined above that there is sufficient evidence to create a dispute of material fact regarding whether UCI fired Albrecht due to the exercise of his CFRA rights. Functionally, there would be little difference between that finding and a finding that UCI fired Albrecht due to his disability. In the context of this case, those claims are essentially one and the same. Accordingly, for the reasons we stated above, there was sufficient evidence to go to the jury on a claim for disability discrimination.

Because both age discrimination and disability discrimination were alleged together in the fourth cause of action, we need not separately address age discrimination. Partial summary adjudication is not permitted. (Code Civ. Proc, § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action”].) Since the disability discrimination claim survives summary judgment, the summary adjudication of the fourth cause of action was improper.

The Motion In Limine

Switching now to the trial on the harassment claims, Albrecht assigns one error on appeal: that the court erred by ruling, in limine, that evidence of Albrecht’s termination is irrelevant to the harassment claims, and thus inadmissible. We begin with the legal framework for the distinction between harassment and discrimination.

Government Code section 12940 separately provides causes of action for discrimination (subdivision (a)) and harassment (subdivision (j)). Courts, in turn, have interpreted the two subdivisions as covering different conduct.

“‘[T]he Legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, and business or personnel management decisions—which might later be considered discriminatory—as inherently necessary to performance of a supervisor’s job’” (Reno v. Baird (1998) 18 Cal.4th 640, 645 (Reno).) “‘[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.’” (Id. at pp. 645-646.) “‘[C]ommonly necessary personnel management actions such as hiring and firing . . . do not come within the meaning of harassment.’” (Id. at pp. 646-647.)

Based on this distinction, UCI asserts that the court’s ruling was plainly correct: Albrecht’s firing is not relevant to a harassment claim.

Things are not quite so simple. In Miller v. Department of Corrections (2005) 36 Cal.4th 446 (Miller), a sexual harassment case, two female employees claimed their supervisor accorded favorable treatment to numerous other female employees with whom the supervisor was having sexual affairs, creating a hostile work environment. The court agreed. But this favorable treatment consisted largely of commonly necessary personnel management actions. Does that render it a discrimination claim instead of a harassment claim?

While the Miller decision did not address that question, our high court subsequently reflected on that question in Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (Roby). There, the court reaffirmed the conceptual distinction between discrimination and harassment (id. at pp. 705-706), but clarified that, for evidentiary purposes, the distinction often breaks down: “Our decision in Miller, supra, 36 Cal.4th at pages 460-466 further clarifies the FEHA’s distinction between discrimination and harassment. Although discrimination and harassment are separate wrongs, they are sometimes closely interrelated, and even overlapping, particularly with regard to proof.” (Roby, at p. 707.) Even though the harassment consisted largely of personnel decisions in Miller, the sine qua non of the harassment claim was the message it sent: “[I]n Miller the immediate source of the plaintiffs’ alleged injuries was the offensive sex-biased message that the supervisor conveyed, not a demotion or an unfavorable job assignment, and therefore the plaintiffs’ cause of action was for harassment, not for discrimination.” (Roby, at p. 708.) “Nevertheless, official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message.” (Ibid.) “Miller . . . makes clear that some official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” (Id. at p. 709.)

In Roby itself, the court concluded the following behavior contributed to a harassing message: shunning the plaintiff during staff meetings, belittling the plaintiff’s job, and reprimanding the plaintiff in front of coworkers. (Roby, 47 Cal.4th. at p. 709.)

We return now to the court’s ruling. The court excluded any claim of damages flowing from Albrecht’s firing and struck references to Albrecht’s termination (we are told there was also a limiting instruction, but neither party bothered to cite it). We review the court’s evidentiary ruling for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 597.)

The court did not abuse its discretion. While it is true that management decisions can contribute to a harassing message, in both Miller and Roby it was a pattern of personnel decisions that conveyed a message that contributed to a hostile work environment. Albrecht has not pointed to any pattern of personnel decisions into which his firing fits. Nor is there any evidence that his firing was conducted in an abusive manner. It simply did not fall within the scope of a harassment claim, and thus it was properly excluded.

DISPOSITION

The court’s summary adjudication of Albrecht’s fourth cause of action for age and disability discrimination and ninth cause of action for retaliation in violation of CFRA and FMLA are reversed. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.

IKOLA, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.